Fight the Combating Online Infringement and Counterfeits Act

Tuesday, September 21, 2010

I wrote my representatives:

The “Combating Online Infringement and Counterfeits Act” introduced by Senators Leahy and Hatch to shut down internet sites accused of violating copyright is fundamentally unacceptable and must be blocked. It is predicated on three failed precepts.

First:
The law would provide for expedited prior restraint of free speech based on a claim of infringement. This extends the already over-broad powers granted by the DMCA, which has been used to silence political opposition (e.g. John McCain’s DMCA takedown of a critical video on YouTube) and shut down legitimate criticism of corporate and financial interests. This bill will further erode free speech in America and thus further delegitimize democracy itself.

Second:
The bill provides for in rem actions against a web site. In rem actions have become one of the most popular mechanisms which police forces have used to enrich themselves by taking legal action against private property (e.g. USA v. $124,700 (2006)). This has lead to massive corruption and even the murder of innocent people (e.g. Donald P. Scott 1992). In rem cases should be limited to acceptable legal situations where the owner cannot be identified, not as a method of prior restraint or as an extrajudicial shortcut that effectively extorts compliance from the target by creating an excessive cost barrier to seeking real justice.

Third:
The bill promotes the fiction that copyright law is a property law. It is not. Limited monopolies on the fruits of inventions are offered to inventors to promote the progress of science and the useful arts. These monopolies are in the form of copyrights and patents. There is no constitutional basis for creating laws to protect the privilege of copyright beyond what can be proven to promote the progress of science and the useful arts. It is an offense to democracy to privilege profits over basic civil rights. American society would not suffer meaningfully without the copyright industry, but American democracy is meaningless without free speech. Unfortunately, the copyright industry leverages profits into campaign contributions and lobbyists while free speech is, by its nature, free and thus profitless. Free speech can only be defended from profiteers by patriots.